Journal of Criminal Law and CriminologyVolume 78Issue 1 Spring Article 3

Spring 1987

On the Theory of American Adversary CriminalTrialGary Goodpaster

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Recommended CitationGary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. Crim. L. & Criminology 118 (1987-1988)

0091-4169/84/7801-118THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 78, No. 1Copyright 0 1987 by Northwestern University, School of Law Printed in U.S.A.

ON THE THEORY OF AMERICANADVERSARY CRIMINAL TRIAL*

GARY GOODPASTER**

I. INTRODUCTION

The adversary system is a foundational feature of our legal sys-tem. Many of the activities in our legal system are overtly adver-sarial, and virtually all of our public legal decisions are processed inan adversarial fashion. The adversary premise also underlies all ofour law and our thinking about law. While the adversary system isimportant, there has been relatively little study of this adversary sys-tem premise.' This premise is a foundational axiom so embeddedin our thought processes and actions that we build on it withoutquestioning why we use this footing.

The use of an adversarial system to generate decisions about

* I would like to thank David Baldus, Florian Bartosic, Richard Delgado, Floyd

Feeney and Robert Hillman for their encouragement and comments on the first draft ofthis article.

** Acting Dean and Professor of Law, University of California, Davis.1 The aim of this article is to articulate, elaborate and explore theories of American

adversary criminal trial, ultimately making the best case for our system. Many peoplehave mixed feelings about our adversary system, and yet are fascinated by it enough totry to figure out why criminal cases are tried in the rather peculiar way they are.

In researching this topic, it becomes apparent that there are very few discussions ofthe theory of adversariness. While a number of works discuss or critique the adversarysystem or some of its features, few investigate the theory of the adversary system. In-deed, most justifications proferred for the adversary system are simply rhetorical asser-tions about its supposed merits. There are few works, however, that attempt to provideexplanations or analyses of how the adversary system achieves its claimed results.

The principal works that analyze the theory of the adversary system are: Fuller, TheAdversary System, in TALKS ON AMERICAN LAW 30 (H. Berman ed. 1960); Luban, The Adver-say System Excuse, in THE GOOD LAWYER 83 (D. Luban ed. 1983); Donagan,Jusifying LegalPractice in the Adversary System, in THE GOOD LAWYER 123 (D. Luban ed. 1983); Schwartz,The Zeal of the Civil Advocate, in THE GOOD LAWYER 150 (D. Luban ed. 1983); Damaska,Structure of Authority and Comparative Criminal Procedure, 84 YALE L.J. 480 (1975).

Most adversary system critiques assume that truth-finding is the purpose of the ad-versary system and challenge it from that point of view. The principle critiques are: J.FRANK, COURTS ON TRIAL (1950); M. FRANKEL, PARTISAN JUSTICE (1978); Frankel, TheSearch for Truth: An Umpireal View, 123 U. PA. L. REV. 1031 (1975); Damaska, EvidentiaryBarriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. PA.

L. REV. 506 (1973).

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disputes is a large subject. This Article undertakes a more limitedinquiry. Adversariness of itself has little concrete meaning. Thereis no generic type of adversary system; different societies use differ-ent versions. The ancient Greeks and Romans each had adversarialsystems of public decision-making, but these systems were quite dif-ferent from both the English adversary trial system and our own sys-tem.2 Trial by physical battle is a type of adversarial system, as areformal debate, presidential elections, football games, and a host ofsimilar events. What all of these events have in common is that theyare contests that lead to decisions. They can be distinguished, how-ever, by the manner in which the contest is structured. This Articleaddresses the question of why we structure our adversary criminaltrial contest the way we do.

II. DETERMINATIVE CHARACTERISTICS OF

ADVERSARY TRIAL SYSTEMS

There are several determinative features of adversary trial sys-tems. These features include: the roles of the judge and other deci-sion-makers (active or passive); the role of the parties or partyrepresentatives in controlling presentations; the manner in which"facts" are proven; the obligations of the parties to one another;and informational and decisional side constraints which directly orindirectly skew final decision-making. 3 Adversary systems can becompared on the basis of these determinate features, some of whichare intimately related, and on the ways the system fills and combinesthese variables.

In the United States, there are two separate adversary systems,a civil and a criminal system. Although these two systems have someidentical features, they differ structurally in the ways in which theyspecify some of the variables described above. In general, the crimi-nal adversary system operates under more numerous, and morestringent, side constraints than does the civil system. The obliga-tions between the parties also differ in the criminal and civil systems.This Article focuses on the criminal system, leaving the civil systemand underlying relationship between the two systems to a later time.

2 See R. BONNER, LAWYERS AND LITIGANTS IN ANCIENT ATHENS 167-96, 203-22(1927);J. STRACHAN DAVIDSON, 2 PROBLEMS IN THE ROMAN CRIMINAL LAW 112-34 (1912);A. GREENIDGE, THE LEGAL PROCEDURES OF CICERO'S TIME 471-504 (190 1); A. HARRISON,THE LAW OF ATHENS 47-48, 156-67, 247-54 (1971); W. KUNKEL, AN INTRODUCTION TOROMAN LEGAL AND CONSTITUTIONAL HISTORY 66-74 (2d ed. 1973); D. MACDOWELL, THE

LAW IN CLASSICAL ATHENS 242-47 (1978).3 Cf. Damaska, The Adversary System, 1 ENCYCLOPEDIA OF CRIME AND JUSTICE 24-29 (S.

Kadish ed. 1983).

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The American adversary criminal trial is a regulated storytellingcontest between champions of competing, interpretive stories thatare composed under significant restraints. The parties composetheir stories for and present them to an impartial and passive audi-ence which acts as a decision-maker, by assigning criminal liabilityon the basis of the stories. 4

The major structural features of American adversary criminaltrials are as follows. 5 "Facts" are "proven" dialectically through acomplex process of persuasion. This process takes the general formof a dramatic contest aimed at shaping two mutually inconsistentinterpretations of common data. A decision-maker, paradigmati-cally a jury composed of non-legally trained lay persons,6 assessesthe stories presented to it and assigns criminal liability. The parties,almost always acting through attorneys, control and manage thepresentation of evidence-the materials from which "facts" are con-structed. The parties and their attorneys are also attitudinally andethically committed to winning the contest rather than to someother goal, such as discovery of truth or fairness to the opposingside.

7

4 "Story telling" seems to be the most accurate description of the focus of the activi-ties of each side in a criminal trial. See the enlightening study of W. BENNETT & M.FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM (1985).

5 See supra note I for a list of sources.6 If both the prosecution and defense waive the right to jury trial, a judge, sitting

alone, may hear and decide a criminal case. Singer v. United States, 380 U.S. 24 (1965).A jury trial, however, is central to the American system of adversary criminal trial.Duncan v. Louisiana, 391 U.S. 145 (1968). This article discusses only the jury trialsystem.

7 If the truth is that his client committed the crime, the defense attorney's job isto keep the truth from coming out, or to keep the jury from recognizing it if it does.It is unethical to hold back any effort, to do the job with less than all one's "zeal".

J. KUNEN, How CAN You DEFEND THOSE PEOPLE? THE MAKING OF A CRIMINAL LAWYER

30 (1983).As a matter of constitutional law, the prosecution has a duty to disclose some evi-

dence to the defense. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs,427 U.S. 97 (1976). Cf. United States v. Bagley, 473 U.S. 667 (1985). The theory under-lying this disclosure requirement is that the State's law enforcement interests are servedwhen both the guilty are convicted and the innocent are acquitted. The state thereforehas an obligation to ensure that trials are fair so that the innocent will not be convicted.As agents of the state, prosecutors' duties include the duty not to use perjured testimonyknowingly, Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213(1942); Napue v. Illinois, 360 U.S. 264 (1959); to disclose on request evidence favorableto the accused, Brady v. Maryland, 373 U.S. 83 (1963); and, in some cases, to discloseevidence favorable to the accused even when there has been no request for this informa-tion, United States v. Agurs, 427 U.S. 97 (1976).

The defense has no reciprocal disclosure obligation. The above cited cases there-fore, can be interpreted to suggest that the prosecution has an obligation to seek thetruth, but the defense does not. These cases, however, impose only limited disclosureobligations and do little to affect the competitive ethos of prosecutors. Prosecutors do

ADVERSARY CRIMINAL TRIAL

The parties have significantly unequal mutual disclosure obliga-tions. The prosecution must present its story first, thus permittingthe defense an opportunity to assess the competing story and to ad-just its own story accordingly. The prosecution does not have thepower to force the defending party to testify and thereby providethe prosecution with material for its story. Additionally, the prose-cution must satisfy an extraordinarily high burden of proof-beyonda reasonable doubt-in order to prevail. Complex evidentiary rulesgovern the material that may be incorporated into the parties' sto-ries and the inferences the decision-maker should draw from thematerial. Complicated legal instructions are presented to the jury inorder to focus and limit its decisional discretion.

III. THEORIES OF ADVERSARY CRIMINAL TRIAL

What explanations does our legal system offer to account forthese features? The major explanations of adversary trial are that itspurpose is truth-finding; that it leads to fair decisions; that it pro-tects the people from oppression or potential oppression by govern-ment; that, as a stalemate system, it is conducive to bargaining; andthat finally it is a process designed to produce publicly acceptableconclusions which project substantive legal norms, whether or notthose conclusions are grounded in true facts.

A. TRUTH-FINDING THEORY

The most common view of the purpose of the adversary systemis that in matters relating to human, as opposed to scientific, affairsit is the best truth-finding system we can devise. This view is basedon claims that "[t]ruth is best discovered by powerful statements onboth sides of a question." The simplest formulation of this viewassumes that the principal issue of an adversary trial is to discover"what happened," that is, historical fact, and that a competitive con-test over what happened is the best way to accomplish this goal.

This view is easy to debunk as an unequivocal explanation of anadversary criminal trial. Aside from trial lawyers and perhapsjudges, both of whom have economic and ideological investments in

not try cases as investigations aimed at discovering what happened; rather they try toprove a theory of the case that they advance. In practice, prosecutors are as committedto winning as defense counsel. Prosecutors, like the system as a whole, assume that thebattle will determine who has truth on their side.

8 United States v. Cronic, 466 U.S. 648, 655 (1984). This view is also shared by

adversary system critics. Cf., e.g., M. FRANKEL, supra note 1, at 6, 87;J. FRANK, supra note1, at 80-102, 108-25.

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the system,9 it is doubtful that many people think that an adversarycontest is the best way to discover what actually happened. Neitherscientists, engineers, historians nor scholars from any other disci-pline use bi-polar adversary trials to determine facts. Following thespace shuttle explosion, for example, no one proposed that the in-vestigating Presidential Commission adopt the procedures of adver-sary civil or criminal trials. Indeed, the suggestion that acommission investigating any disaster might wish to follow suchprocedures seems quite strange, and many people would react in-credulously were such procedures adopted. In matters of impor-tance, we want an active investigative body capable both of testingany credible hypotheses and of amassing evidence from any sourcerelevant to them. In trials, party control of evidence acquisition andpresentation limits the number of possible hypotheses presentedand restricts the evidence which is available to assess these hypothe-ses.10 For this reason, trials are generally thought to be less reliablehistorical fact-finding procedures than more active investigativeprocedures.

Other factors that render suspect the truth-finding capacities ofadversary criminal trials include the fact that the parties are gener-ally committed to prevailing rather than to discovering the truth.Thus, the parties inevitably shape the evidence and use their persua-sion skills toward that end.1' The lay jury, inexperienced in theways of lawyers and in the assessment of witnesses, may easily bemisled.' 2 The rules of evidence, particularly the exclusionary rules,

9 See, e.g., Simon, The Ideology of Advocacy: ProceduralJustice and Professional Ethics, 1978Wis. L. REv. 30; Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REv. 589 (1985).

10 This article does not suggest, however, either that adversary proceedings have novalue in settling issues or that there are no respectable disciplines that use adversaryproceedings. Philosophical and scholarly debate is often adversarial, and even investi-gating commissions may invite adversarial presentations. Such presentations are oftenused to illuminate, to overcome adversarial bias, to persuade and to help the commis-sion decide between possible courses of action. There is a difference, however, betweenthose adversary proceedings in which the decision-maker has the power and ability itselfto uncover information and where many adversary viewpoints may be presented andthose adversary proceedings that are controlled by parties who present only two oppos-ing points of view. Only the latter types of proceeding are addressed in this article.

I " "Partisan lawyers do not try to uncover the truth. On the contrary, lawyers trainedand commissioned to seek justice, are engaged very often in helping to obstruct anddivert the search for truth." M. FRANKEL, supra note 1, at 75. Furthermore,"[tfrequently the partisanship of the opposing lawyers blocks the uncovering of vitalevidence or leads to a presentation of vital testimony in a way that distorts it." J. FRANK,supra note 1, at 81.

12 "Unable to cope with complicated information that is scrambled by cross examina-tion, jurors are pushed into relying on their intuition or into making value judgmentsbased on pretrial beliefs." Austin, Why Jurors Don't Heed the Trial, The Nat'l L.J., Aug. 12,

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may keep relevant evidence from the jury.1 3 The unilateral discov-ery rule, which in many jurisdictions requires at least some pretrialdisclosure of the prosecution's case 14 without requiring a reciprocaldisclosure from the defense, permits the defense to tailor and ma-nipulate facts to its advantage.' 5 The privilege against self-incrimi-nation prevents the state from requiring the defendant to testifyand, thus, forecloses an important source of evidence for the prose-cution.' 6 Finally, the prosecution's burden of proving guilt beyonda reasonable doubt is exceptionally difficult to meet. In practicaleffect, the prosecution's failure to meet that burden may result in aguilty party's acquittal.

1985, at 15, col. 3 (citing Vinson, Psychological Anchors: Influencing the Jury, 8 LITIGATION20 (1982)).

Studies ofjuries in civil cases suggest additional problems.One disturbing strategy jurors may employ when expert testimony is in direct

conflict is to ignore all expert testimony and evaluate the case on othergrounds ...

Another evaluative strategy jurors use to reason through conflicting expert tes-timony is to favor the side they judge to have the most credibility ...

Expert testimony that is not credible may have a detrimental "spillover" effecton other evidence, calling it into question. For example, if an expert testifies to afact or expresses an opinion that seems mildly discordant or preposterous in rela-tion to evidence already presented, jurors may doubt the earlier evidence, no matterhow reliable it may be ...

There is a third and less extreme strategy jurors may adopt. Studies of theeffects of conflicting expert testimony on the reliability of eyewitness testimonyshow that, while jurors considered the experts' advice, the net effect of the conflictis that one witness neutralizes the impact of the other. It is as if no expert testimonywas presented.

Goodman, Greene & Loftus, What Confuses Jurors in Complex Court Cases, The L.A. DailyJ.,Nov. 21, 1985, at 16, col. 3.

Generally, juries are thought to be more lenient than judges on the issue of guilt.H. KALvEN & H. ZEISEL, THE AMERICANJURY 58 (1966). Those members of the school ofJudge Frank would take this tendency as evidence ofjury fact-finding incompetence. Cf.J. FRANK, supra note 1, at 108, 145. Others view disagreements between judges andjuries as evidence that juries sometimes bend the law to comport with their sense ofwhat is fair, just and equitable. V. HANS & N. VIDMAR, JUDGING THE JURY 163 (1986).

13 See Damaska, Evidentiary Barriers, supra note 1. "Under the adversary system, muchlogically relevant and cognitively valuable information never reaches thefactfinder .. " Damaska, Presentation of Evidence and Factfinding Precision, 123 U. PA. L.REV. 1083, 1094 n.22 (1975).

14 Cf. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97(1976).

15 Cf. J. KUNEN, supra note 7. Scholars support the practitioners' view that the de-fense attorney's aim is not truth or fairness, but the most favorable outcome possible forhis or her client. Genego, The Future of Effective Assistance of Counsel: Performance Standardsand Competent Representation, 22 AM. CRIM. L. REV. 181, 200 (1984). In pursuit of this aim,the defense attorney's whole effort may be to make the worse seem to be the better case.Trial attorney training manuals are replete with techniques and suggestions for how toaccomplish this goal. See, e.g., W. BROCKETr &J. KFKER, EFFECTIVE DIRECT AND CROSS-EXAMINATION (1986). CfJ. KUNEN, supra note 7, at 94-96, 214-15, 244.

16 Damaska, Evidentiary Barriers, supra note 1, at 528-29.

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Advocacy ideology and its associated advocate's ethos are ofparticular importance in assessing the truth-finding capacity of crim-inal trials. In the adversary system, the adversary is interested inwinning rather than in the discovery of truth. This ethos is best cap-tured by the two principles articulated by Murray Schwartz: theprinciples of non-accountability and professionalism. The principleof non-accountability holds that "[w]hen acting as an advocate for aclient ... a lawyer is neither legally, professionally, nor morally ac-countable for the means used or the ends achieved."1 7 The princi-ple of professionalism holds that "a lawyer must, within theestablished constraints upon professional behavior, maximize thelikelihood that the client will prevail."' 8

As this ethos plays itself out in adversary criminal trials, the ad-vocate tries to frame and shape the evidence and inferences in herfavor whether or not such manipulation actually corresponds towhat really happened or to the facts as the advocate knows them. Itis difficult, however, to see how the truth (historical fact) can be un-covered where at least one party to the proceedings is actively seek-ing to hide the truth because it is damaging to her client. As anelement of trial design in a truth-finding theory of trial, the advocacyethos presupposes an "invisible hand" theory of competition. 19

This theory is based on the premise that when two advocates vigor-ously oppose each other in an effort to do their best for their client,rather than with the aim of discovering truth, they inadvertentlyserve the systemic goal of truth-finding. The respective efforts ofthe opposing attorneys to maximize the interests of their side leadto the best systemic results even though neither attorney directlytries to achieve these ends.

In such a system, the truth might emerge if the mutual and mis-leading distortions of the two equally matched and similarly pur-posed adversaries annihilated each other, like a collision of particlesin a cyclotron, leaving historical fact behind as a trace particle. Thischerished belief is, however, just a hopeful supposition derived fromadvocacy ideology. There is no empirical evidence indicating thatthe contests of advocates deliver truth in this manner.

17 Schwartz, supra note 1, at 150.18 Id.19 The arguments suggested by Luban relative to the rights theory of the adversary

system are effectively extrapolated at this point to the truth-finding purpose of the ad-versary system. Luban, The Adversary System Excuse, in THE GOOD LAWYER 99 (D. Lubaned. 1983).

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B. FAIR DECISION THEORY

The foregoing features of adversary criminal trials, which sug-gest that the criminal adversary system is structurally truth-dysfunc-tional, give rise to the "fair decision theory" of trial. The strictestform of this trial theory holds that trials are not a good way to dis-cover the truth, because the truth of what actually happened is prob-ably unknowable. In a criminal trial situation, nonetheless, there isa dispute between the state and an individual that needs to be re-solved. The best we can do is arrange a criminal dispute resolutionprocedure that is at least fair to both the state and the individual. 20

The procedural elements of party control, party commitment towinning, and jury fact determination are viewed as conducive to fair-ness because they lead to a potentially equal contest before an unbi-ased decision-maker. In this scheme, the evidentiary rules arenecessary to insure that the jury will not be unduly influenced bysuspect evidence. Broader fairness considerations arguably accountfor the unilateral discovery rules and the privilege against self-in-crimination, both of which are essential to offset the government'sresource advantages and to insure that the government plays fairlyby preventing coerced admissions or confessions.

Fair decision theory alone cannot account for the adversarialnature of the system, because it is possible to conceive of fair deci-sion procedures which do not involve adversariness or at least thedegree of adversariness found in our criminal trial system. The Eu-ropean inquisitorial or investigative system of criminal trial is oneexample of a system that is thought to be fair, but not adversarial. 21

There is some evidence, however, that party control of adver-sarial proceedings gives affected participants a greater sense of fair-ness and perhaps a greater willingness to accept the outcome. 22

Nonetheless, party control is but one feature of adversary criminal

20 This appears to be the thrust of Fuller's argument. Fuller, supra note 1.

In the end, the justification for the adversary system lies in the fact that it is a meansby which the capacities of the individual may be lifted to the point where he gainsthe power to view reality through eyes other than his own, where he is able to be-come as impartial, and as free from prejudice, as "the lot of humanity will admit."

Id. at 47.21 For a discussion of the inquisitorial system, see Damaska, Evidentiary Barriers, supra

note 1, at 556-57. See generally J. LANGBEIN, COMPARATIVE CRIMINAL PROCEDURE: GER-MANY (1977).

22 There is also empirical evidence, subject to varying interpretations, indicating that

experimental subjects prefer adversary fact-finding procedures to other procedures andfind them to be the most fair. J. THIBAUT & L. WALKER, PROCEDURALJUSTICE: A PSYCHO-LOGICAL ANALYSIS 113-14 (1975). Cf. Damaska, Presentation of Evidence and Factfinding Pre-cision, 123 U. PA. L. REV. 1083 (1975)(critiquing Thibaut, Walker & Lind, AdversaryPresentation and Bias in Legal Decisionmaking, 86 HARV. L. REV. 386 (1972)).

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trial, and a psychological explanation of party control does not ex-plain other criminal trial features such as the privilege against self-incrimination, the right to jury trial, the evidentiary complicationscaused by a jury trial, or the burden of proof beyond a reasonabledoubt. These features also cannot be explained by fairness consid-erations. Leaving aside coercion or other abuses external to trial,nothing seems inherently unfair about requiring a defendant to givetestimony, requiring criminal cases to be tried before a judge orpanel of judges, admitting some of the evidence that now is ex-cluded, or using a different burden of proof.

For these reasons, it is clear that something more than simplefairness is the operative determinant of the structure of criminal tri-als. Plainly, the criminal defendant has a set of rights which mayinterfere with truth-finding and which go beyond immediate fairnessconsiderations. A defendant's right against self-incrimination, theright to unilateral discovery from the prosecution, the right to a jurytrial, and the burden of proof beyond a reasonable doubt, for exam-ple, are potentially significant barriers to truth-finding. These rightsof the defendant are not matched by an equivalent set ofprosecutorial rights. Indeed, from a fair contest point of view, anadversary criminal trial has an asymmetric shape, with one side hav-ing qualitatively and quantitatively different and considerably morerights than the other. Furthermore, the prosecution has fairness ob-ligations which are not reciprocated.

To explain this skewed structure, a fair decision theorist mightsuggest that there is a kind of "rights offset" where the defendant isgiven a set of rights to offset the natural resource and public supportadvantages of the prosecutor.23 Some of the defendant's unilateralrights thus might be construed as at least partially animated by fair-ness concerns, where fairness is understood broadly as a matter ofequalizing advantages and disadvantages. This explanation makessome sense, but, it seems to be a strange way of handicapping toproduce an equal contest. A defendant's criminal trial rights are ob-viously both more and less than a counterweight to governmental-prosecutorial advantages. They are more than a counterweight inthat they amount to a potential systematic frustration of governmen-tal power in all cases, whether or not a particular defendant needsthe advantage conferred. They are less than a counterweight togovernmental prosecutorial advantages in that in many, if not most,trials the "rights offset" does not in fact compensate for the govern-ment's power and resources. Giving a defendant exactly the same

23 Schwartz, supra note 1, at 158.

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resources as the government might, notwithstanding the generalpublic relations advantage of the government, produce a moreequal contest than the current structure. 24 Thus, a criminal defend-ant's unilateral trial rights do not fit well into either a truth-findingor fair contest theory of trial.

C. TRUTH-FINDING AND FAIR DECISION THEORIES JOINED

Truth-finding and fairness theories of criminal trial are some-times joined, and this combination may account for adversary crimi-nal trial structure. For example, in Polk County v. Dodgson,25 theUnited States Supreme Court said that "[t]he system assumes thatadversarial trial testing will advance the public interests in truth andfairness." ' 26 Other opinions suggest that truth and fairness are notseparate interests to be pursued, but that they are intimately con-nected.27 The connecting idea appears to be that a fair procedurerepresents a means of ensuring that the truth will be discovered.Furthermore, if the truth is discovered in trial and illegal methodswere not used to obtain the truth, the trial could not have beenunfair.

Thus, there are two reasons to join truth and fairness as twinpurposes of adversary criminal trials. First, an unfair decisional pro-cedure may lead to erroneous fact-finding. Second, there is a needto account for the truth dysfunctionality of trials. If criminal trialsare not good truth-finding mechanisms, as many observers agreethey are not, then we must offer some other value that trials arestructured to protect in order to explain why we use the adversarialsystem. Because criminal trials principally err on the side of errone-ous acquittals, the apparent conclusion is that this price is justifiedby our concern for fairness to the defendant.

D. THE RELATIONSHIP BETWEEN TRUTH-FINDING AND FAIR DECISION

PROCEDURES

The ease of associating the idea of an adversary criminal trial asa truth-finding device with the idea of using such a trial as a fairdecision procedure demonstrates the close relationship between thetwo concepts. By definition, an unfair decision procedure or pro-

24 Schwartz, supra note 1, at 158.25 454 U.S. 312 (1981).26 Id. at 318.27 Cronic, 466 U.S. at 655-56; Strickland v. Washington, 466 U.S. 668, 686-87 (1984).

Such statements prove nothing. These statements may, however, reflect a hope that ifsociety states its ideals of truth and fairness in conjunction, it may be more likely to findthese ideals together.

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cess has a built-in bias. In this sense, because an unbiased decisionprocedure is likely to produce a different result than a biased proce-dure, the decisional result of an unfair procedure cannot be a "true"result. For this reason, we tend to connect fair procedures with cor-rect or "true" results. The truth-finding and fair decision notions ofthe purpose of the adversary criminal trial system, therefore, seemfully compatible and mutually reinforcing.

This resolution, however, is not completely satisfactory. While afair procedure may lead to a correct result in the sense that it is anunbiased result, there is no necessary correlation between an unbi-ased result and what actually happened. In other words, the idea oftruth which is present in the notions of correct or "true" results isnot necessarily the same idea of truth which is present in the notionof truth-finding. Truth-finding generally refers to the discovery of"what actually happened" and is thought of as the exact correspon-dence between what we presently assert and the actual reality of apast event. When "true" results are referred to as following from afair decision procedure or contest, however, truth is, in effect, beingdefined by fairness; what is fairly decided is true, simply because itwas fairly decided.

In our thinking about the adversary system we tend to confusethese two different concepts of truth. It is often wrongly assumedthat a trial that is a fair contest is a trial that produces "true" resultswhich correspond to the facts of "what actually happened." Thereis a similar problem with the idea of fairness in the concept of "fairdecisicn procedure." Although ordinarily we do not use the terms"fair" or "unfair" in reference to scientific investigations, it doesmake sense to speak of such an investigation as a "fair" treatment ofthe problem or as "fair" to the underlying facts. In scientific investi-gations, all possible sources of error or bias must be found and cor-rected for. An erroneous or biased investigative method, which is,in effect, an "unfair"method is suspect in principle because it is notlikely to disclose the true state of affairs.

A procedure can be fair or unfair, however, in ways that areunrelated to the discovery of the true state of affairs. A footballgame, for instance, which is a kind of decision procedure, is fair if itis played according to rules that are fairly enforced by the officials.If the rules of any game or proceeding are neutral as to result andare enforced without bias, the game or proceeding is fair whether ornot the result reflects some other state of affairs, such as whether thebetter team actually won or whether the actual facts of some priorevent in issue were truly disclosed.

A criminal trial is both an investigation and a contest. It is im-

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portant to understand, however, that the factors that make the trial afair contest, in the sense of using neutral rules which are neutrallyapplied, are not necessarily the same as the factors that make it a fairinvestigation, in the sense of using a process designed to elicit actualfacts. A fair investigation could be an unfair contest or no contest atall; a fair contest could be an unfair investigation or no investigationat all. Similarly, a trial that produces "true" results and is a faircontest is not necessarily a trial that uncovers "truth" in the sense of"what actually happened." Finally, a trial that uncovers the "truth,"in the sense of "what actually happened," is not necessarily a fairtrial producing "true" results because it may not have been a faircontest.

Trial fairness appears to be an independent purpose of thestructure of the adversary criminal trial, but the fairness of the pro-cedures is not a guarantee of the truth-finding capacity of trials. Asan independent purpose, trial fairness may actually interfere withtruth-finding. Nonetheless, it is doubtful that our pursuit of fairnessexplains the adversary criminal trial structure, because, as previ-ously noted, fairness does not require a particular set of procedures.Fairness notwithstanding, the question remains why our justice sys-tem uses the particular adversary criminal trial features that we use.

IV. AN ALTERNATIVE VIEW OF TRIAL TRUTH AND FAIRNESS

Perhaps the truth-finding and fair decision theories should beviewed as limited to the universe of law. 28 In this view, law is justone of a number of kinds of discourse about the world. As a dis-course, the law has its own concepts, categories of thought, andways of perceiving and processing information. 29 Legal discourse

28 The view presented here is an elaboration of the notion that the adversary system

is a system of proof rather than a system of discovery of what actually happened. Thereare occasional undeveloped references to this idea in the literature. "[I]t is not thattools for determining truth are imprecise, but that the truth may not be ascertainable byany means in the form we seek it. What we are trying to measure may be indefinable."Briscoe, ". . . For the Devil Does not Know Man's Intentions. . . ", 44 AusT. LJ. 31 (1970).

Let no one pretend that our system ofjustice is a search for truth. It is nothing ofthe kind. It is a contest between two sides played according to certain rules, and ifthe truth happens to emerge as the result of the contest, then that is pure wind-fall. . . . It is not something with which the contestants are concerned. They areconcerned only that the game should be played according to the rules. There aremany rules and one of them is that some questions which might provide a shortcutto the truth are not allowed to be asked, and those that are asked are not allowed tobe answered. The result is that verdicts are often reached haphazardly for thewrong reasons, in spite of the evidence, and may or may not coincide with the truth.The tragedy of our courts is that means have come to count more than ends, formmore than content, appearance more than reality.

L. KENNEDY, THE TRIAL OF STEPHEN WARD 251 (1964).29 C. GEERTz, LOCAL KNOWLEDGE 173-75 (1983).

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may, in some respects, track the world in the same way that otherkinds of discourse do, while in other respects it may not. Legal dis-course is simply one of many approaches of dealing with the world.Just as the legal discourse describes a person differently than doesordinary language, for example, the law considers a corporation tobe a person for some legal purposes, so too the law may also haveboth a different concept of truth and a different way of finding truththan do other systems of thought.

A trial is an accusatory proceeding. As such, trials have no ab-stract interest in what happened independent of the accusation. Inother words, the issue in a trial is the truth of the accusation, and theaccusation is true if it is proven to be true within the rules of proofand persuasion. In this manner, a trial produces truth, rather thanfinds it. This truth is a "legal" truth and is that which the systemrecognizes as true.

V. CRIMINAL TRIALS AND THE MANUFACTURING OF FACT

In criminal trials, the verdict is a combination of a judgmentabout historical "fact" and a decision about culpability for what isthought to have happened. While the two are deeply related, gener-ally we separate them conceptually. In a homicide trial, for exam-ple, the questions of historical fact are those regarding thecircumstances of the victim's death: how did he die?; from what didhe die?; how was the defendant physically involved in the victim'sdeath? The culpability question, however, addresses the degree ofthe defendant's responsibility for the victim's death and is a mixedfact and value question of intentionality.

In reaching a verdict in a criminal trial, the trier of fact mustdraw inferences from historical fact in order to settle the question ofintentionality. The process is more complicated than this statementsuggests, however, because in most trials historical fact itself is indispute. Additionally, the kind of historical fact with which the lawis concerned may not even exist in any meaningful way independentof the method of proof.

In the conceptual universe of law, fact and law are radically sep-arated. Trial decisions are considered to involve two distinctly dif-ferent operations: determination of facts and application of law tothe facts. This conception of the relationship between law and factposits that the major issue in trials is the determination of what actu-ally happened. The criminal adversary jury trial does not, however,appear to be a particularly good way to determine historical fact.The failure of the adversary system as a method of finding historical

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fact has led to strong criticisms of the system and proposals for howit could be changed to improve its fact-finding methodology.

Further consideration reveals that the critique of trials as truth-finding devices is fundamentally mistaken because there is no radi-cal separation of fact and law. "[L]egal facts are made not born, aresocially constructed. . .by everything from evidence rules, court-room etiquette, and law reporting traditions, to advocacy tech-niques, the rhetoric ofjudges, and the scholasticisms of law schooleducation. . . "30 Facts are "close edited diagrams of reality." 3'

The rendering of fact so that lawyers can plead it, judges can hearit and juries settle it is just that: a rendering. As in any trade, science,cult or art, law, which is a bit of all of these, molds the world into aworld in which its descriptions make sense. . . . At base, it is not whathappened, but what happens, that law sees; and if law differs, from thisplace to that, this time to that, this people to that, what it sees does aswell.32

In other words, the law manufactures facts from the raw data ofreality so that it can perform its operations on them. Facts do notannounce themselves as facts. The data from which factual conclu-sions are drawn is ambiguous and subject to varying interpretations.Furthermore, the same data can constitute a different fact under adifferent theory of what the data means. For example, assume that aman has a rifle with a small worn spot in its firing chamber. Whatare the facts?(1) The rifle was not manufactured properly and, as a result, themetal in the chamber had a low spot that wore unevenly as theweapon was used;(2) While cleaning the weapon one day, the man found a smallnick. He took a piece of bronze wool and rubbed out the nick, per-haps a little too enthusiastically. Rubbing out the nick produced theworn mark;(3) At a gun show, the man bought a small part that he could putin the operating mechanism so that the rifle could fire automatically.He has fired the weapon automatically but has since removed thepart because it is illegal to possess an automatic weapon. The wornspot is the place where the part struck the chamber when the gunwas fired automatically.

The mark is on the rifle, but its meaning lies in its explanation.Different explanations interpret the mark differently. The mark asdata becomes a fact only when it finds a place in a theory or explana-

30 Id. at 173.31 Id.32 Id

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tion. In this sense, "facts are theory laden,"'3 3 and facts in law areladen with legal theory. The business of trials and trial lawyers is tomanufacture such facts. Theories fabricate facts, and they constructfacts from data. Facts are thus elements in a net of signification inwhich the whole explains the parts and the parts explain the whole.In the rifle example, suppose the man was arrested and the rifle wasfound in his possession. The worn spot was discovered in a routineforensic examination. Assume that:(1) The man is an employed family man without a police record;(2) The man is unemployed, attempted to assault the officer whenhe was arrested, was found with another weapon in his possessionand also possessed mercenary and terrorist literature. In each case,suppose the man is prosecuted for the federal firearms offense ofaltering a rifle to fire automatically. In which case is he most likely tobe convicted?

Although in either case, he may or may not have deliberatelyaltered the weapon, the theory that he did alter it fits best with thesecond assumed case. It fits better in that case because the manseems to be the kind of person who might commit this crime. Fur-ther, ajury is more likely to believe that someone who reads terror-ist literature would want an automatic weapon. In the secondassumed case, the theory of deliberate alteration fits the data, thecast of characters and ordinary beliefs. 34

When there is uncertainty about what happened, the uncer-tainty must be settled through meaningful constructions of the dataor evidence presented. The data, in turn, is generated by theoriesor stories proposed to explain all of the data, including the credibil-

33 See N. HANSON, PATrERNS OF DISCOVERY (1958); N. GOODMAN, WAYS OF

WORLDMAKING 91-97 (1978). Legal thinkers have almost arrived at the same insight."You cannot decide which facts matter unless you have already selected, at least tenta-tively, applicable decisional standards. But most of the time you cannot understandthese legal standards without relating them to the factual situation of the case."Damaska, Presentation of Evidence, supra note 13, at 1087 n.7. What this statement misses,however, is the fact that legal theories or decisional standards may determine not onlywhich facts matter, but also what counts as fact.

3 [A] version [of the world] is taken to be true when it offends no unyieldingbeliefs and none of its own precepts. Among beliefs unyielding at a given time maybe long-lived reflections of laws of logic, short-lived reflections of recent observa-tions, and other convictions and prejudices ingrained with varying degrees of firm-ness. Among precepts, for example, may be choices among alternative frames ofreference, weightings and derivational bases. But the line between beliefs andprecepts is neither sharp nor stable. Beliefs are framed in concepts informed byprecepts . .f.

Truth, far from being a solemn and severe master, is a docile and obedientservant. . . . [The scientist] seeks system, simplicity, scope; and when satisfied onthese scores he tailors truth to fit. He as much decrees as discovers the laws he setsforth, as much designs as discerns the patterns he delineates.

N. GOODMAN, WAYS OF WORLDMAKING, supra note 32, at 18 (citations omitted).

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ity of those who presented it. In effect, we create facts by embed-ding data in socially acceptable explanations. 35 A decision aboutwhat the "facts" are is an implicit acceptance of the theory or storywhich gives the data credible meaning by connecting it into a unifiedwhole.

A trial is, therefore, a contest over the meaning of evidence,and the "evidence" is data that the trial attorneys have alreadyshaped into some frame of reference. That frame of reference is atheory of the case or a story that makes sense in some world viewembedded in the law. The trier of fact uses all of the trial data,including the respective attorneys' shaping and reading of the evi-dence, to draw its own inferences and to generate its own reading ofthe evidence. When the trier of fact is a lay jury, it may import read-ings different from those considered permissible by legally trainedpersons.

"Truth," in the context of an adversary trial, is thus, the infer-ences of ultimate historical fact and liability that the fact-finderdraws from the "evidence" that the adversaries help to fashion.How closely such "truth" comports with the "real truth," whateverthat might be, is indeterminable.

Jury verdicts are a composite of influenced "fact" determina-tions and associated value judgments. These determinations andjudgments are mediated by the jurors' own conceptions of how theworld and people operate and are filtered through the mental tem-plates that the law imposes on the interpretation of conduct. In thissense, there is no truth regarding criminal liability independent of thetruth determined at trial, and trials are more truth-producing thantruth-finding events. In other words, trials produce what we arewilling to accept as truth.36

Obviously, this interpretation of an adversary criminal trial as away to discover truth is very different from the simple notion thattrials are an ideal procedure to discover what actually happened.This rendition of the truth-finding theory, which depends on theredefiniton of the meaning of truth, is actually a disguised version ofthe theory that the purpose of trials is to reach a decision acceptableunder prevailing social and cultural norms and beliefs. If society

35 This also explains why trials are framed as competitions between stories.36 "In many of these [criminal trials], objective truth is more ambiguous, if it existsat all. Such truth exists only as it emerges from the fact-determining process, andaccuracy in this context really means relative equality of results as between defend-ants similarly situated and relative congruence between the formal verdict and ourunderstanding of society's less formally expressed evaluation of such conduct."

Enker, Perspectives on Plea Bargaining, in TAsK FORCE REPORT: THE COURTS 108, 113(Task Force on the Admin. ofJustice 1967).

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accepts its system of criminal trial proof, which assumedly it doesbecause society thinks it is the right, fair and just way to make thesedecisions, then society also of necessity accepts as correct the resultsof that system.

Assuming the foregoing is what the legal system really meansby truth in the context of the adversary criminal trial, problems re-main. There often may be gaps between what the legal system con-cludes is the truth and what someone with an ordinary world viewwould conclude actually happened. Because serious consequencesflow from criminal adjudication, questions arise as to why societytolerates these gaps and exactly what benefits, if any, the adversarialsystem provides.

VI. THE RIGHTS THEORY OF ADVERSARY CRIMINAL TRIAL

Any attempt to determine why society tolerates a system that itknows is in some sense defective as a truth-finding device leads to athird view of the purpose of adversary criminal trial, namely, therights theory. Under one version of this position, termed the stan-dard rights view, a defendant's trial rights are seen as designed inpart to make it difficult for the government to bring and win anyprosecution.3 7 Under this view, either truth-finding or fair decision,or both, are accepted as central purposes of adversary criminal tri-als. Trials, however, are also structured to accomplish an additionalpolitical purpose: to ensure that the power of prosecution is notused as a general power of persecution. Thus, defendants' trialrights protect all citizens from the possible abuse of the govern-ment's power and resources.38

The criminal law is one of the government's greatest weapons.Obviously, it can be used to control populations by harsh means.Compared to the average citizen, the government has overwhelmingresources and tremendous credibility advantages. Furthermore,judges are government officials, and, in the long run, they are notlikely to oppose the government. Even if judges develop a cultureof independence from the government, all professional judgingwould still tend toward bureaucratic justice. Judging seems inher-ently to tend toward rigorous administration of calculable rules, adehumanized justice little concerned with individual differences.39

A defendant's trial rights, therefore, intervene to handicap the gov-

37 Luban, supra note 1, at 91-92.38 Id.

39 M. WEBER, LAW IN ECONOMY AND SocIETY 976 (M. Rheinstein ed. 1954).

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emnment's use of criminal prosecution and its ability to influenceoutcomes.

The adversary criminal trial can be understood as a check on asignificant risk of persecution or an otherwise too enthusiastic pros-ecution policy. The rights position also implies a concern with therisk of erroneous conviction. Because adversary trials are neither anaccurate nor dependable way of determining facts, there is a greatrisk of error in trial verdicts. Both parties in court run that risk:trials may produce erroneous convictions or erroneous acquittals.In a symmetrical adversary system, and given the relative ease ofprosecuting and the relative difficulty of defending against prosecu-tions, the risk of erroneous convictions seems greater than that oferroneous acquittals. Because of the serious consequences of crimi-nal convictions, it is better to risk erroneous acquittals than errone-ous convictions. 40 Criminal trials, therefore, should be structurallyskewed to favor acquittals.

Making prosecution more diffcult is one way to redistribute therisk of error arising from criminal trial decisions. There may beother ways as well. Equalizing prosecutorial and defense resources,for instance, might do as much to reduce the risk of wrongful con-victions as all of the defendant's unilateral trial rights. Considera-tion of such alternatives leads to the implicit question of why the riskof trial error should be redistributed through a system of trial rights,rather than through some other means. The rights theorist wouldsimply respond that a system of trial rights was the only availablemeans to check governmental power when the adversary criminaltrial system was developed. 41

The rights theory provides a credible account of the truth dys-functionality of criminal trials. The rights theory also provides amore satisfactory account of the asymmetric structure of trials ascontests than does the fair decision theory. The standard rightsview also has the merit of partially accounting for the peculiar ethosof criminal trial attorneys: to win, rather than to discover truth.

For the criminal defense attorney, the discovery and revelationof the truth to the jury is just one means to the end of winning acase. The truth does not matter very much unless it allows the clientto go free. In the standard rights view of criminal trials, the criminaldefense attomey and his competitive ethos are necessary to make itmore difficult for the government to bring and win prosecutions.

40 Schwartz, supra note 1, at 158.41 It is undeniably true that some of a criminal defendant's trial rights were function-

ally developed for this reason. Cf. H. GREEN, VERDICT ACCORDING TO CONSCIENCE 1200-1800 (1985); J. BEATrIE, CRIME AND THE COURTS IN ENGLAND 1600-1800 (1985).

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The defense attorney is permitted to play unfairly in the sense thathe or she has no duty to discover the truth, except to avoid assistingin the commission of known perjury or the use of false evidence.Furthermore, the defense attorney may present any plausible de-fense, even if it is false. By contrast, the prosecutor is required toplay fairly in the sense that he or she cannot hide the truth if it isknown to be favorable to the defendant. The necessity to confrontplausible, but false, defenses obviously makes it more difficult forthe prosecutor to obtain a conviction.

There is also an expanded version of this rights view which seesa criminal trial as a forum for enforcing a regime of individual con-stitutional rights designed to limit criminal law enforcement powersgenerally.42 To the list of a defendant's unilateral trial rights, thisview would add fourth amendment rights against search andseizure, 43 the Miranda expansions of the fifth amendment privilegeagainst self-incrimination, 44 and the sixth amendment right to coun-sel decisions enforced by the exclusionary rule.45 Law enforcementviolations of any of these rights call for the exclusion of probativeevidence from the criminal trial. Under this view, the strong versionof the rights thesis, trial design incorporates not only fundamentalpolitical and policy decisions to handicap the government in crimi-nal prosecutions, but also a decision to vindicate constitutionalrights by providing a forum to discover and remedy theirviolation.

46

This strong version of the rights thesis outlines the basic logicof the position, but at an even greater cost to the truth-finding andfair contest functions of trials. The strong rights theorist may arguethat while the enforcement of rights may limit the ways in which

42 M. FREEDMAN, LAWYERS' ETHics IN AN ADVERSARY SYSTEM 3-4 (1975).43 E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Katz v. United States, 389 U.S. 347

(1967); Spinelli v. United States, 393 U.S. 410 (1969).44 Miranda v. Arizona, 384 U.S. 436 (1966).45 E.g., Brewer v. Williams, 430 U.S. 387 (1977); United States v. Henry, 447 U.S.

264 (1980).46 See M. FREEDMAN, supra note 42, at 3-4. This view has not gone uncriticized:

Such widespread adoption of conventional rules [i.e., the various exclusionaryrules] as essentials of due process seriously distorts factual hearing and weakens theprotection of primary personal right that criminal law should provide. Invasion ofthe victim's primary right goes unprosecuted as a consequence of police invasion ofthe criminal's civil right, which likewise goes unprosecuted. We have set fire to thehouse of criminal law in our attempt to roast the police pig. Defenders of the prac-tice of suppressing evidence argue that criminal process provides an appropriateforum for correction of its own abuses and, therefore, suppression of evidence isboth permissible and desirable. The abuses, however, are not those of courts but ofgovernment agents-investigators and police-and our corrective efforts should bedirected against them, not against reliability of criminal hearing.

M. FLEMING, OF CRIMES AND RIGHTS 155 (1978).

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truth is pursued, there are right and wrong ways to pursue truth. Ifthe government would adhere to the correct ways, rights wouldpose no problem to truth-seeking. Similarly, the rights theoristwould say that although trials are asymmetrical contests, they arenot really unfair to the government, for rights are appropriatechecks on government activity. While this gloss makes the strongrights view consistent with a belief in criminal trials as truth-findingor fair decision events, it cannot justify the "win" ethos of criminaltrial attorneys, which, unless it adopts the standard version of theright theory, regards rights as means and not ends in themselves.

Under the strong rights view, the "win" ethos of defense attor-neys is arguably essential to the vindication of defendants', and byimplication other persons', constitutional rights. It would, however,be a mistake to consider defense attorneys as rights knights orpaladins. Defense attorneys often seek to enforce rights not for thesake of preserving the constitutional regime, but to inhibit the dis-covery of truth for the purpose of winning. Motions to suppressrelevant evidence have no other motivation. For the criminal de-fense attorney, the enforcement of constitutional rights is only ameans to the end of winning or getting the best possible disposition.If a constitutional right doesn't contribute to those ends, it will bewaived. Although the "win" ethos doesn't necessarily secure consti-tutional rights in individual cases, it may, however, secure them bet-ter than other altematives. 47

In the rights view, then, trial design incorporates a fundamentalpolitical decision to circumscribe the power of the government topunish or harass people through criminal proceedings. It also in-corporates a policy decision, arising from the weakness of the adver-sary trial as an accurate truth- finding device, to favor acquittals overconvictions. A necessary result of these kinds of checks on govern-mental power, however, is a deterioration of the criminal trial as a

47 This is an empirical question on which there have been no studies. It is, however,certainly a belief among public defenders and some criminal defense attorneys. Indeed,a few years ago, when public defenders' stock was particularly low, some of them woreT-shirts emblazoned with the slogan "Liberty's Defenders." Kunen expresses the sameview in stating: "Of course it's terrible for guilty people to go free. That's the price we payfor not having cops crawling in and out of our houses." J. KuNEN, supra note 7, at 166(emphasis added in original).

Anyone who does a significant amount of criminal defense work, except perhapsthose who are utterly cynical or are simply in it for the money, must at some pointconfront the moral and psychological problems associated with representing personswhom the public despises and who may have committed terrible crimes. The justifica-tion that such representation helps advance larger systemic goals, such as the further-ance of liberty, may ameliorate the internal conflicts, ease the moral labor and permitthe attorney to continue in his or her work.

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successful truth-finding procedure or as a neutral, unbiased contest.A defendant's trial rights operate as strong constraints on the crimi-nal trial as an investigative search for truth or as a fair decisionprocedure.

48

The rights theory is essentially a testing theory.49 Testing theo-ries of criminal trial are attractive because they provide an explana-tion of the asymmetric character of criminal trials and the heavyburdens placed upon the prosecutor. What a testing theory cannotexplain in its own terms, however, is the level of difficulty set by thetest. Presumably, the rights theorist would say that the level of diffi-culty was set through experience. The accumulation of centuries ofAnglo-American experience with government prosecutions led bothto the common law of trial structure and to the criminal trial rightsestablished in the Bill of Rights of the United States Constitution.Expansive case law interpretations of these rights simply reflectmore contemporaneous experience.

VII. THE BARGAINING INCENTIvE THEORY

The bargaining incentive theory5° is a pragmatic offshoot of therights theory. It takes the structure of an adversary criminal trialand a defendant's unilateral trial rights as historical givens which

48 For a very helpful discussion of the idea of side constraints, see R. NozIcK, ANAR-CHY, STATE, AND UTOPIA 28-35 (1974).

49 Some theorists based the rights theory on "dignity" interests. See generally M.FREEDMAN, supra note 42. The basic idea of this approach is that the particular scheduleof rights that we possess derives from the resolve to treat all humans in certain civilizedways in order to acknowledge their humanity and accord them the dignity associatedwith being human. This seems to me to be an elevated way of saying that we have rightsin order to protect people from the abuses of governmental power. Casting the discus-sion in terms of dignity interests, however, does not seem to advance it in any usefulway, and thus this Article uses a more direct approach.

On the other hand, one could argue that a dignity interests rights theory is not atesting theory. Under a testing theory, rights insure a structural test of the govern-ment's case and for that reason provide a protection against possible abuse. A dignitytheorist, however, might argue that we have rights as ends in themselves, rather than asa means to some other end such as protection from the government. In effect, this viewequates the possession of certain kinds of rights with being human. Consequently,whether or not the rights serve as a check on government, one would still be entitled tothem. Cf M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982). Rights would,nonetheless, remain side constraints on the search for truth.

50 The following includes extrapolations from the author's experience as a publicdefender and from M. FRANKEL, supra note 1, at 89-93. What is apparently a predomi-nant practice and what Frankel deplores as a demonstration of the unworkability of ourcurrent system of adversary criminal trial, has been developed into a positive theoryjustifying the structure of the criminal adversary trial system. This new theory is devel-oped not because the theory articulated is correct, but, rather, because it focuses onimportant systemic features that other theories do not even discuss. It is also an ideaworth developing just to see where it will lead.

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form the foundation of a system of criminal case resolution that ismuch greater than the trial. In this view, the balance of structuralforces in adversary criminal trials are in equipoise. In general, thismeans that, for either side, going to trial is a great risk. Juries, theskills of trial lawyers, and the exercise of a defendant's trial rightsmake trial results unpredictable. The prosecution has resource andpublic relations advantages over the defense, but the defense, how-ever, has advantages of prior knowledge of the prosecution's case,the suggestibility of the lay jury and the defense attorney's commit-ment to winning rather than to finding the truth.

It is very difficult to say how these relative advantages will influ-ence the outcome of any particular trial. Indeed, the unpredictabil-ity of trials is so great that it affects the decision of each party to goto trial. In general, the prosecution will seek to try only those casesit believes it can win. The defense will try only those cases in whichit has nothing to lose by going to trial.

Under the bargaining theory, criminal trials are considered anexceptional method of disposing of criminal cases, a kind of extremezero-sum contest resorted to only when a case cannot be satisfacto-rily bargained. Criminal trials are structured so that each side, pros-ecution and defense, has both bargaining power and a strongrational incentive not to go to trial. The uncertainty of result is sohigh and the risk of loss is so great, that the parties are stronglyinfluenced to compromise their positions and reach a negotiatedsettlement.

The bargaining theory represents a system-functional view ofadversary trial which looks at the adversary system not in terms ofintellectual justifications, but in terms of its practical effects. It takesas its effective purpose the functions of the criminal adversary sys-tem. The bargaining theorist readily admits that the features of thecriminal adversary system were not consciously designed to create abalance of power aimed at discouraging trial. This theorist wouldassert, however, that it is a genetic fallacy to conclude that a thing,event, process, or institution is no more than its origin. In this theo-rist's mind, the adversary criminal trial system is a currently adaptedsystem, and the features of the system that were originally intendedto serve a certain purpose now effectively serve another goal. Thestructure of adversary criminal trial poses no problems for the bar-gaining theorist because he is not concerned with issues of truthfinding, trial fairness and side constraints.

There is a certain attractiveness in the bargaining theory thatcauses a problem to disappear as a result of a refusal to see it, be-cause it helps to place adversary criminal trials in perspective. For

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example, one might consider the truth dysfunctionality of criminaltrials a monumental problem if all criminal cases were tried. But thefact that criminal disposition through trial is but a small percentageof all criminal dispositions may mean that this problem is not veryserious. 51 This presumes, of course, that the truth dysfunctionalityof criminal trials does not have a serious impact on non-trial adjudi-cated criminal dispositions, a matter much in doubt.52 Even the bar-gaining theorist would admit that there are criminal trials and thattrials keystone the bargaining system. Trials must in some way radi-ate their effects through the system and therefore impact it.

A. THE NORM THEORY

A different view of the purpose of criminal trial originates in theperception that criminal trials are structured to be truth dysfunc-tional and that trials play a social role greater than simple decision-making in individual cases. Norm production or the norm theory,53

51 Most criminal cases are resolved by guilty pleas. Cf. Finkelstein, A StatisticalAnaly-

sis of Guilty Plea Practices in the Federal Courts, 89 HARv. L. REV. 293 (1975); Zeisel, TheDisposition of Felony Arrests, 1981 AM. B. FOUND. RES. J. 407.

52 One can argue, for example, that the exclusionary rule has a signficant effect on

plea bargaining. If a prosecutor believes she will lose a defense motion to suppressimportant evidence, she may be unwilling to go to trial and may instead settle for aguilty plea to some lesser charge which the defendant is willing to accept. There has

been some empirical work on this question, but the results have been questioned.53 As with other "theories" discusssed in this article, there is no definitive statement

of "norm theory" in the literature. This article traces the basic claim of the theory,which is that the purpose of social rituals is to constitute community, to the great Frenchsociologist, Emile Durkheim. EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD

(S. Solovay &J. Mueller trans. 8th ed. 1938). Thurman Arnold appears to be the firstlegal scholar to have applied this idea to trials by treating them as a form of social ritual:

The judicial trial thus becomes a series of object lessons and examples. It is away in which society is trained in right ways of thought and action, not by compul-sion, but by parables which it interprets and follows voluntarily. . . . For most per-sons, the criminal trial overshadows all other ceremonies as a dramatization of thevalues of our spiritual government, representing the dignity of the State as an en-forcer of law, and at the same time the dignity of the individual when he is anavowed opponent of the State, a dissenter, a radical, or even a criminal ...

The criminal trial is a consequence of security, because only when men aresecure are contradictory social values tolerated. It appears as an incident to theenforcement of law and the efficient investigation of issues of fact. One of its great-est difficulties is its necessity to appear as an efficient means of enforcement andworking order, and at the same time bring into sharp relief various deep-seatedpopular moral ideals. Generally the ideal of law enforcement and efficient investi-gation are in direct conflict with accepted social behavior. In such cases the mentalconflict between what the group thinks it ought to do, and what it actually does,must be reconciled by the conviction of some offenders and the acquittal or thefailure to prosecute others.

T. ARNOLD, THE SYMBOLS OF GOVERNMENT 129-31 (D. Harbinger ed. 1962).Nesson, in his fine article entitled The Evidence or the Event: OnJudicial Proof and the

Acceptability of Verdicts, 98 HARV. L. REV. 1359 (1983), uses the norm theory to explaincertain rules of evidence. Nesson seems implicitly to advance the norm theory as a gen-

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like the rights theory, is a testing theory of criminal trial. While therights theory, at least in its standard version, envisions criminal trialstructure as a set of institutionalized protections for individuals, thenorm theory views the structure as a system designed to producenorms that the public will readily accept.

The norm theory claims that the purpose of an adversary trial isto produce "acceptable conclusions and thus to project substantivelegal rules." 54 It begins with the premise that a major goal of thelegal system is to articulate behavioral norms and to affirm moralvalues and law abiding attitudes.55 The norm theory sees criminaltrials, which generate public judgments about conduct, as eventsthat project a public message or norm through a verdict. Thatmessage is a norm if the public accepts it as such, and the public willaccept it if it believes that the condemnation of conduct embodiedin the verdict is a judgment about what actually happened. 56

According to this theory, it is not necessary that trial results re-flect what actually happened, but only that the public believes thatthey do. Trials must, therefore, be structured so that the public willaccept their results as credible. In other words, criminal trials musthave a structure which is generally perceived as a strong test of theprosecution's case. In overcoming such substantial disadvantages asa high burden of proof, the privilege against self-incrimination, lackof discovery and the exclusion of probative evidence, the prosecu-tion passes a difficult test and more convincingly proves that the de-fendant actually did commit a crime.

The adversary ethos fits well into the norm theory. The struc-tural purpose of the defense counsel is to insure a rigorous testingof the prosecution's case. Defense counsel's role, therefore, is "todesign and present the most plausible defenses, even though theymay be false."'57 Such extreme testing of the prosecution's case, ineffect a kind of norm production quality control, insures that thepublic will acccept a jury's finding of guilt. Under the norm theory,the truth dysfunctionality of trials is not a great problem. Indeed,

eral explanation of adversary criminal trial structure. Where Arnold emphasizes thesymbolic character of trials as dramatizations of moral ideals, Nesson simply asserts thattrial verdicts generate norms.

Nesson's statement is the most recent and simplest statement of the norm theory.His discussion therefore, is used as a statment of the basic premises of the theory. I havenot, however, forgotten Durkheim and Arnold, for they have valuable insights addressedlater in the Article.

54 Nesson, supra note 53, at 1390.55 Id. at 1360.56 Id.57 Id. at 1376.

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the theory postulates a decisional system which produces fewer pos-itive results-convictions-than are warranted, and more negativeresults-acquittals-than are warranted. This result is acceptablebecause a trial system that errs on the side of certainty in its convic-tions is more acceptable to the public than one that runs the risk ofconvicting innocent people.

The norm theory explains some of the structural features of ad-versary criminal trial such as jury trial, proof beyond a reasonabledoubt, evidentiary rules restricting unreliable evidence, and thecriminal defense attorney's ethos. Under the notion that trials aredesigned to be difficult tests, this theory may also account for unilat-eral discovery from the prosecution, exclusionary rules of evidence,and, perhaps, even jury passivity. On the other hand, the testingportion of the norm theory may prove too much. It is always possi-ble to argue that the existence of some constraint on proof is meantto make proof more difficult and therefore is a test of the strength ofa proponent's case. A testing rationale cannot, however, define howdifficult the test should be. Virtually any set of constraints willframe a test, and, theoretically, one could add constraint on con-straint with the only results being increasingly more difficult tests.Assuming criminal trials are arranged to make it difficult for theprosecution to convict, what accounts for the degree of difficulty im-posed by the particular criminal trial structure we have?

Since the norm theory turns on public acceptance of trial re-sults, it must claim that the level of prosecutorial difficulty is an em-pirical matter. What is critical is that the trial is structured so thatthe public will accept the verdict. Public acceptance, however, isnot a stringent condition for trial structure; this suggests that underthe norm theory there may be a range of structural prosecutorialhandicaps that would satisfy this condition. In other words, unless italso resorts to historical explanations of the kind invoked by rightstheory, norm theory cannot explain the unique set of prosecutorialhandicaps that form the structure of an American adversary criminaltrial.

There are also some features of the adversary criminal trialstructure which arguably would decrease public confidence in trialresults. The norm theory requires that the public believe that trialresults reflect what actually happened so that the public will acceptthe norm projected by the verdict. If, for instance, the public knowsthat probative evidence was excluded from a criminal trial that re-sulted in an acquittal, is it really likely to accept whatever norm that

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acquittal implies?58

Finally, and perhaps most importantly, how does the public at-tend and receive lessons at the school of trials? How does the ver-dict imply a norm? How is that norm promulgated to the public?And, what does public acceptance mean? Certainly a verdict is ajudgment about perceived conduct, and, in that sense, it is a norm.Verdicts, however, are general; they are judgments about the sumtotal of what was presented to the jury. Verdicts thus appear to lackthe specificity we expect of norms that govern conduct, and theymay be such general condemnations or exonerations that they arevacuous. In any event, except perhaps in the most news-generatingcases, few members of the public are aware of criminal case verdicts.Of those few who are aware of a particular verdict, even fewer havesufficient knowledge of the evidentiary details of the trial to drawmeaningful conclusions about what the jury verdict means as anorm.

While the idea of public acceptance of verdicts as norms has acertain rhetorical appeal, it seems rather empty. It is difficult to im-agine what public non-acceptance of criminal trial verdicts would belike. Evidently, public acceptance must mean something more thana lack of an outcry; it must be something on the order of an integra-tion into the public's stock of rules used to regulate and assess be-havior. This is, however, a highly questionable empirical claim, andthe theory posits neither a mechanism for this integration nor em-pirical proof that verdicts have this effect.

VIII. A UNIFIED VISION OF ADVERSARY CRIMINAL TRIALS

Each of the theories of adversary criminal trial that I have dis-cussed thus far seems to capture some aspect of the system,although no single theory presents a complete picture. What is cor-rect about the truth-finding theory is that we are interested in insur-ing that criminal trials produce true or just results under ourprevailing ideas of truth and justice. The emphasis in the fair deci-sion theory on the need for a decision generated in accordance withprocedures which are thought to be both fair and unlikely to lead tobiased results is also correct. The rights theory is correct in its claimthat possible trial error is skewed in the direction of erroneous ac-quittals. Both the bargaining theory and the norm theory put all ofthis in perspective. The norm theory gives the adversary criminaltrial a broader social role than a simple adjudication of criminal lia-bilities. That broader role contemplates not only decisions in indi-

58 Nesson is aware of this problem. Nesson, supra note 53, at 1367 n.31.

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vidual cases, but also the generation and promulgation of normsreflective of contemporary community standards.

To reconcile the differences between the various theories, onecould simply assert that the adversary criminal trial system has mul-tiple purposes and that each theory selects a single purpose as cen-tral to the system. In this view, each univocal theory errs inundervaluing the systemic purposes that the other theories posit.To correct for this theoretic myopia, one could assert that the sys-tem has all of the purposes posited by these theories: truth finding,fair decision, protection from possible governmental abuse andnorm generation. These purposes, however, co-exist in an unstabletension.

On further reflection, it is apparent that the theories elaboratedare in some manner variants of one another. When the truth-find-ing theory is construed as a truth-producing theory, it reveals itselfas the fair decision theory in disguise. The rights theory is a form ofthe fair decision theory that structurally incorporates a risk analysis.The fair decision theory, the rights theory and the truth productiontheory all appear to be versions of norm theory. The norm theory,like the rights theory, is a testing theory, and it can be construed asincorporating the systemic purposes posited by the other theories asconditions for the community's acceptance of verdicts as norms.

These observations suggest that all of the theories have a com-mon origin. As the most overarching of all the theories, the normtheory seems to hold the greatest promise of revealing that origin.The norm theory, however, is underdeveloped, and it does not ac-count for any particular schedule of defendant's rights or explainhow verdicts are translated into operative norms. Further develop-ment of the norm theory may remedy these defects and provide acompelling, and unified vision of the adversary criminal trial system.

The norm theory finds its source in the work of the greatFrench sociologist, Emile Durkheim. Durkheim's thesis, articulatedspecifically in regard to community punishments, is that the func-tion of certain community actions, such as punishments, is to definethe community. 59 A community defines certain acts as criminal inorder to indicate what is outside the bounds of acceptable commu-nity behavior. The community by its actions thus defines itself andinforms any prospective community member what is expected ofhim or her.60 Durkheim noted, for example, that some punishmentscould not have any of the effects that we normally associate with

59 E. DURKHEIM, supra note 53.60 Id.

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punishment, such as revenge, deterrence or rehabilitation. Somesocieties, for example, punish animals that have not committed awrong; others punish inanimate beings.6 1 Such punishments are rit-ual punishments whose only function is to create the communityand establish or express social solidarity.

Durkheim also explored how social rituals operate to maintainsocial ideals. According to Durkheim, the great ideals of civilizationwere born in select periods of cultural innovation or crisis whenhuman interactions reached an intense pitch and gave birth to newideas. But, societies cannot maintain that intensity and instead fallback to their normal level:

This illusion [that some ideal expresses a reality] can never lastbecause the exaltation cannot maintain itself at such a pitch; it is tooexhausting. Once the critical moment has passed, the social life re-laxes, intellectual and emotional intercourse is subdued, and individu-als fall back to their ordinary level. All that was said, done and thoughtduring this period of fecund upheaval survives only as a memory, amemory no doubt as glorious as the reality it recalls, but with which itis no longer at one. It exists as an idea or rather as a composition ofideas. Between what is felt and perceived and what is thought of in theform of ideals there is now a clear distinction. Nevertheless these ide-als could not survive if they were not periodically revived. This revivi-fication is the function of religious or secular feasts or ceremonies, allpublic addresses in churches or schools, plays and exhibitions in aword, whatever draws men together into an intellectual and moralcommunion. These monfents are, as it were, minor versions of thegreat creative movement.62

Durkheim's insights focus on the building and communitymaintenance aspects of social rituals. His views suggest that thecommonly accepted purposes of many social actions, such as someforms of punishment or anything that is deemed a form of ritual, arenot the sole or main functions of those actions. Rather, the mainfunctions are found in the solidarity effects of the ritual. Generaliz-ing, all community rituals provide occasions for reaffirming or defin-ing community values and thus for creating or maintaining acommunity of individuals through the promotion, acceptance, adop-tion and maintenance of shared values and ideals.

This suggests that we can most effectively develop norm theoryas it relates to adversary criminal trials by taking seriously the ideathat criminal trials are social rituals. As social rituals, criminal trialshave at least two solidarity functions. First, a criminal trial defines

61 E. DURKHEIM, THE DivisION OF LABOR IN SociETY 85-86 (1964).62 Durkheim, On the Process of Change in Social Values, in THEORIES OF SOCIETY 1305,

1309 (T. Parsons ed. 1961).

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the community by deciding a defendant's guilt or innocence: thosewho are found guilty are implicitly cast from the community, at leastfor a period of time. This process defines the community by deter-mining membership in accordance with standards applied by thejury acting as a representative of the community.

Second, criminal trial as social ritual, in addition to defining thepresent community, defines the community through time. An ad-versary criminal trial is a democratic rite connecting modem peopleto the founders and the ideals of human freedom that they articu-lated. The rights that shape and structure the criminal trial invest itwith a special type of ceremony and confirm in it a distinctly Ameri-can complex of conceptions and ideals about the relationship be-tween government and the people. In effect, certain Americanideals, beliefs and understandings of the way the world should anddoes operate interact and resonate harmonically with trial form toconfirm both our way of operating criminal trials and our identity asAmericans.

To develop these ideas, it is necessary to examine the Americanadversary criminal trial system to see how it comprises a ritual andhow it confirms or generates values and maintains ideals. Of thetheories of adversary criminal trial considered, only the norm theoryemphasizes the central role of the jury in trial structure. In the truthfinding theory, the jury is a liability; in the fair decision theory, thejury is a putative protection from judicial bias; in the rights theory,the jury represents one of a number of defendants' trial rights. Thejury is central to the norm theory, however, because only a bodytaken from a cross sectional representative group of the communitycan meaningfully project community norms. In this view, the crimi-nal trial jury is the principal force in shaping and maintaining thestructure of the criminal trial, because the jury represents the com-munity, both symbolically and actually, and brings community con-sciousness, community values and culture into the trial system. Thejury is also a focal point of trial as a communal ritual. Thus, the bestway to explore and develop the norm theory and to answer the criti-cisms raised earlier is to examine criminal trials from the point ofview of the jury.

IX. A JURY'S VIEW OF CRIMINAL TRIAL

The ancient Greek word for trial is agon, a word that better thanany modern words captures within its multiple meanings theunique, complex and rich character of criminal jury trials as humanevents. Agon means a gathering or assembly, a contest or struggle, a

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dramatic conflict between chief characters in a play.63 For the trialjury, as well as for other trial participants, a criminal trial is all ofthese: drama, spectacle, performance, competition, communitymeeting and decisional forum.

These features of trials, which I call "agonic resonances", aregreatly underplayed in explanations of adversary criminal trial. Eve-ryone knows they exist, but these features do not fit easily with stan-dard purposive explanations and are generally ignored as simplycoincidental similarities between criminal trial and certain otherhuman activities. 64 On the other hand, one could contend thatthese features are culturally fundamental to the American criminaltrial system and help to explain its particular forms.

Legally trained individuals quickly grow accustomed to the for-mal shape of adversary trials and forget how strange, yet familiar,trial proceedings appear to lay persons. The proceedings are partic-ularly strange to jury members who become deeply involved inthem, first as involuntary participants, then as spectators of a specialkind, and finally as decision-makers. Consider, for example, the misen scene, or stage production, values in adversary criminal trial. Thetrial takes place in a special arena, which generally is undecorated,clean, and often furnished in rich wood panelling and severe furni-ture. This setting conveys the austerely dignified effect of a sacredprecinct, a kind of civic temple reserved for the rites of a civic reli-gion. Indeed, the focal arrangements of furniture and seating inmany trial courtrooms are reminiscent of those in churches, with thebench andjurybox replacing the altar and choirbox, and the specta-tor benches replacing the pews. The proceedings have strong ele-ments of formalized ritual. They open in great formality andcontinue in a highly formal and structured manner. A robed andhonored official, the judge, usually assisted by a bailiff, begins theevent and supervises its course through several distinct stages. Acourt reporter meticulously records every word, thus giving them avirtually sacral character.

The principal actors, the judge, the lawyers and the court offi-cials, have formally set roles and set places on the stage. In interact-ing with one another, these role players use special language andstock phrases. They also move in accordance with a set of formalrules, respecting one another's space and moving from one territory

63 N. WEBSTER, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED (P. Gove ed. 1981).64 Arnold is one exception. T. ARNOLD, supra note 53. Arnold views a criminal trial

as an event filled with drama and symbolism, and he brings these features of criminaltrial forward in his discussion.

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to another with notice given to and permission received from thejudge. The jurors, for the most part, are passive participants atthese proceedings; initially, they are cast as a small audience. Thejury is given little direct information about the formalities of theproceedings, the structure of the trial or the limits of their role.What they do learn of these matters, they learn indirectly throughthe process by means of the imbedded cues of ritual, authority,space, position, place, tone and the directions and modelling of theprincipal actors. From time to time, the judge, in formal and unfa-miliar language, instructs the jurors on how to treat various mattersthey see and hear. All of these impressions and overt directionsteach the jurors that they are witnesses to, and ultimately judges of,a very special event.

These ritualistic aspects of an adversary jury trial are important.Ritual stems from and creates identifiable feelings and attitudes, andit imprints solemnity, propriety, regularity and formal rightness onevents, occasions and proceedings. Participation in ritual is also away of acknowledging, or accepting, membership in the communitythat uses the ritual. Depending on its forms, ritual may also invokeand symbolically enact some community value or ideal. Engaging inritual both expresses and creates community; it is a way of partici-pating, sharing, binding and confirming.

The ritual features of an adversary jury trial are entwined withits dramaturgical and contest features. In addition to being a ritualevent, a criminal trial is a kind of drama or morality play, as well as acompetition. Within the framework set by trial formalities, etiquetteand evidentiary rules, the jurors watch a show, produced and di-rected by the lawyers, who are also the principal actors. The show isstaged as a competition between two parties regarding the correctversion of past events and the accused's responsibility for them.The lawyers remain on stage throughout the trial, playing theirparts and directing the gradual and detailed unfolding of stories ofpast events by serially bringing forward other actors to advance thestories.

The drama presented is unusual and has elements both of therehearsed and the extemporaneous, as though it were simultane-ously a scripted play and a spontaneous happening. The charactersare real and are both directed and unrehearsed. The trial actiontakes place in the present, but it is about the past. As a play, the trialhas as its plot the contest between two different stories, the differ-ence generally turning on different alleged factual versions of un-derlying events. What turns the factual versions into differentstories is the way the elements are linked to frame a moral. This

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moral is broadly conceived by the prosecution as a norm violationand by the defense as either not a norm violation, as an excused orjustified violation, or as a lesser violation than what was alleged.

Whatever specific plot surfaces in a particular trial, all trial plotshave as their unstated subtext the opposition between the govern-ment and an individual. In this subtext, the government has twopossible roles: the role of legitimate law enforcer and the role ofoppressor of freedoms. The defendant is also cast in the ambivalentroles of a criminal, a deviant, or a potentially oppressed individual.At the conclusion of the trial, both stories, as well as the implicitsubtext, are proferred in formal equipoise to the jury for judgmentas to who has won the contest, accuser or accused. The jury is for-mally free to accept or reject either story or to compose its ownstory from the materials of the factual versions presented. The jurydoes not have to report which story it chose, but it must agree unan-imously on its judgment. In effect, the jury concludes the plot of theplay by either condemning the defendant or rejecting the accusa-tion, thereby giving the drama a moral. The jury therefore ex-presses a communal moral judgment on the inseparable sum total ofthe drama it has witnessed. In reaching its judgment, the jury alsoreads the subtext of the drama and implicitly decides which roles theprincipal players occupied.

The manner in which the jury reaches its judgment, however, isas important as the judgment itself. Consider, for example, thattrial juries in ancient Greece rendered a communal judgment by in-dividual voting, without discussion or deliberation, following thetrial proceedings.6 5 This "communal" judgment is similar to whatwe see in athletic competitions, for example, where individualjudges rate performances. Such judgments are communal in thesense that they represent the sum of individual and mutually unin-fluenced reactions of community members.

Our criminal juries, however, come to judgment after delibera-tion under circumstances in which the jurors must reach a super-majority consensus of views, either unanimity or near unanimity, inorder to render an acceptable verdict. In this situation, unlike thatof simple, undeliberated voting, the jurors' act of judging is an ef-fort to reach a common understanding about the meaning, in termsof possible criminal liability, of what they have seen and heard. The

65 D. MACDOWELL, THE LAw IN CLASSICAL ATHENS 251-52 (1978). Athenian jurorsmay not have deliberated, but they certainly represented the community in anothersense. Their size was large in comparison to modern juries; in the fourth century, B.C.,juries of 500 were common. There is also evidence of cases being tried by as many as6,000 jurors. Id. at 36, 40.

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communal judgment of our juries is not the sum of individual views,but a negotiated settlement of views.

Each juror comes to this deliberative meeting with a completelypersonal and unique set of impressions, attitudes and interpreta-tions of what he or she has seen and heard. Each juror is an uniqueindividual with education, training and life experiences which differfrom those of the other jurors. The potential for disparity of view-points is virtually guaranteed by the present interpretation of theconstitutional representative jury requirement and its proscriptionon excluding members of cognizable groups from the venire. 66 Fur-thermore, criminal trial rules prohibit the jurors from discussing thecase with anyone, including fellow jurors, prior to the time the caseis sent to the jury for deliberations. 67 Thus, at the start of jury de-liberations there are likely to be many different views of the meaningof the events which the jurors have witnessed. In order to come to acommon agreement, the jurors will have to engage in a cooperativeprocess of interpretation and come to a common understanding bynegotiating a common definition of the situation that was presentedto them. To accomplish this task, the jurors must at least implicitlyaccept a common set of criteria of evaluation and then make similarassessments.

This necessary process in jury deliberations is also an omni-present feature of American society, both as a matter of Americanpolitical ideology and fact. American society is highly heterogene-ous and is composed of people from many different races, culturesand ethnic groups, who hold many different philosophies of life. Inorder for this polyglot polity to function, the frictional differencesbetween people, which may be quite serious, must somehow beworked through in all matters requiring accord for common action.One ideal American model for such decision-making is a direct de-mocracy in which group decisions about what to do in uncertain sit-uations are made following a discussion permitting the developmentof a true consensus.

Consensual decisions in heterogenous societies or groups pre-suppose mutual adjustments of views. In regard to juries, this ad-justment means that jury decisions may not embody the norms ofany affiliation groups to which the members of the jury belong but,instead, will reflect either norms common or generic to all of thosegroups or compromise norms that are acceptable to everyone. It is

66 Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979).67 See, e.g., CAL. PEN. CODE 1122, 1128. Cf California Criminal Jury Instructions

(CALJIC) 17.40 (1979).

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in this sense that the criminal trial jury can be said to express a com-munal judgment: it either applies existing generic norms or makesnew generic norms and applies them. Thejury is, therefore, expres-sive of the larger community in generic norm application and consti-tutive of community in generic norm creation.

The criminal trial jury is an example of a cultural paradigm ofcommunity decision-making. Because this kind of decision-makingis at the core of American beliefs about democracy and ideologicalcommitments to democracy, jury decisions are culturally validated.Since a conviction is a community judgment mediated by the juryabout a factually and attributionally uncertain situation, it definesthe community's moral assessment of that situation. That definitionsets a norm or standard for future similar situations. In otherwords, convictions implicitly produce referential norms.

In celebrated or controversial cases, jury verdicts may directlybroadcast norms either to the community at large, to smaller com-munities or interest groups concerned with the substance of thetrial, or both. Cases such as the recent insider trading cases68 gen-erate enormous publicity, which effectively carries normativemessages of these cases well beyond the inner circle of criminal lawprofessionals. Indeed, such criminal trials often become a focus forpublic consciousness on both the specific normative issues raised bythe trial and on criminal justice and law enforcement matters in gen-eral. 69 In most criminal cases, however, a conviction is not a normwhich is broadcast at large to the community, because the commu-nity does not know enough about it to draw any conclusion regard-ing its normative meaning. The trial participants, however, candraw such conclusions. In an ongoing system of criminal trials, it isthe repeat players in the system, the lawyers and the judges, who areable to draw the normative lessons that jury convictions imply.They develop a feel for what juries are likely to do in many of theinnumerable situations designated for criminal justice system reso-lution and also develop some skill in translating old normative les-sons to new situations. The adversary criminal trial system in agiven jurisdiction develops a local culture regarding what the rele-vant community will and will not tolerate.

The trial lawyers, both prosecutors and defense attorneys, use

68 The indictments of Michael David and Dennis Levine for insider trading sentshock waves through the Wall Street financial and legal communities and apparentlyhave led to many changes in practices. Herzel and Katz, Insider Trading Cases, The L. A.DailyJ.,June 26, 1986, at 4, col. 3; Galen, Security More Crucial Than Ever, The Nat'l LJ.,June 30, 1986, at 1, col. 3.

69 T. ARNOLD, supra note 53, at 147.

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their knowledge of local culture to evaluate cases and to determinewhether they are triable. Essentially, it is the defense that deter-mines whether or not a case is tried because, generally, only thedefense can force a trial. A case is triable for the defense if it clearlyraises an unresolved normative point, if it has significant factual in-determinacies or if there is nothing to lose by going to trial.

Although in theory the structure of adversary criminal trialgives both the prosecution and the defense bargaining power andmakes trial results unpredictable, in reality the local normative cul-ture, as developed over time through convictions, considerablyreduces this unpredictability. Practitioners develop the ability toevaluate and grade situations according to probable findings ofcriminal liability. In effect, convictions set the standards by whichother cases are judged and graded. Practitioners, in assessing andnegotiating settlements in other cases, spread the normativemessages convictions convey throughout the criminal justice system."Truth-finding" is an ideal in this system, and, as an ideal, it is sym-bolically important for its norm-production value. Therefore, thenorms created are valid as they relate to stories presented, and ju-ries must believe that some construction of the informationpresented to them represents the true state of affairs. The ritualfeatures of criminal trials insure that the jurors and everyone elsewill take the trials seriously. It is beside the point that jurors maycome to believe something other than what actually happened, aslong as their error is in the direction of acquittal, which is structur-ally guaranteed by the defendant's trial rights and the adversaryethos.

Jury decision is a key element in the public acceptance of crimi-nal trial decisions. Thejury represents the community, and the trialand deliberative processes make the jury a decisional communitywith a special authority. Assuming that a criminal trial is conductedproperly, society may assume that the prosecution's case has beenseverely tested. When ajury convicts, society may also assume thatthe defendant is guilty and that his conviction represents a referen-tial norm expressive of community sentiment in similar cases.

X. CONCLUSION

The essential criminal trial need is to generate decisions in amanner and with results that the community can accept and use.Criminal trial decisions will be accepted if they are arrived atthrough a process which itself conforms to fundamental, dominantsocial beliefs and attitudes. Among those beliefs are certain deep

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suspicions about the inevitable oppressive tendencies of govern-ment and official decision-making, a deep concern about makingmistakes in matters involving life or liberty, and a confidence, ordemocratic belief, in the ability of citizens to come to wise commu-nal decisions and govern themselves. "The law fulfills its functionsbest when it represents the maximum of competing symbols,"' 70 andAmerican beliefs and attitudes, which sometimes conflict, are struc-turally and symbolically realized in criminal trials through the de-fendant's trial rights. These rights were adopted by our founders asessential to liberty. In our fidelity to these rights and, perhaps, inour development of them in the direction of liberty beyond what thefounders conceived, we show that we are as committed to liberty asthe founders were and affirm, or confirm, each individual's identityas a member of the American polity. 71

70 T. ARNOLD, supra note 53, at 147.71 The following case arose in 1967 in West New Britain, New Guinea. I place it here

on the margin as an example of a "fact-finding trial" in another culture. I leave it to thereader to draw the parallels.

Bruno, Manu's only son, aged twelve years, became ill and died. The symptoms ofhis illness were running, ulcerated sores in his mouth and throat, a posture of some kindof seizure, great pain and high temperature. His death was highly unusual, and every-one knew it was caused by sorcery.

Speculation centered around the three village sorcerers, but finally settled onPanga. In the villagers' minds, these facts singled him out as a sorcerer and perpetrator.He was not a native of the village, but an outsider who had married a native and movedto the village. In this village, sorcerers by definition were outsiders.

Panga had the qualities of a sorcerer. He lied, he was greedy, selfish, pretentiousand bullying. In general, he was neither liked nor trusted.

Panga had a motive. Bruno's father, Manu, had led a group of men who had oncedriven Panga from the village. As Bruno was an only son, killing him would have beeneffective revenge against Manu.

Panga knew sorcery, had a relative who had been a sorcerer, had been jailed forthreatening sorcery, and bragged that he knew how to make poison. Shortly beforeBruno's death, villagers saw Panga perform a ritual.

While the villagers suspected Panga, they did not believe there was enough proof ofguilt to take vengeance. While he could have killed the boy with poisoned food, he didnot admit it, was not seen in a position to have done it, and had never before beensuspected of using sorcery against a villager. The villagers believed that one killed bysorcery knows his killer and that his ghost can, through a proper divination ritual, tellthe living who it was. This was held, as follows:

After dark, a bamboo pole decorated with aromatic herbs and pig mandibleswas carried to Bruno's grave. Bruno was awakened, as were the spirits of his de-ceased kinsmen, and they were carried in the pole to Bruno's home where a bowl offood had been placed inside the house. A hole was made in the wall of the house,the doors of the house were locked, and the pole containing the spirits was thrustinto the house near the bowl of food. Bruno was instructed to eat, and after a fewminutes, as ritually prescribed, his maternal cross-cousin spoke to him by askinghim to identify his killer. The cousin then began calling out the names of Kaliaipeople, village by village, while the pole was rhythmically moved into and out of thehole. The pole began moving more and more rapidly when the questioner reachedKandoka, and at the question did your father's mouth eat you?' the pole was jerked

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into the house and held fast, resisting the efforts of some twenty five men to pull itout.

At this point, the ritual was halted in order to interpret the meaning of thespirit. Speeches were made asserting that, obviously, Bruno did not mean that hehad been killed by a direct act of his father. Instead, his death was the indirectresult of his father's hot temper and quarrelsome ways. Bruno was saying that hehad been killed as an act of vengeance by someone who had been offended byManu. When the content of the speeches indicated that agreement had beenreached on the interpretation of Bruno's message, the divination was resumed, thistime to discover the village home of the killer .... As the naming neared Panga'shouse, the pole moved increasingly faster.

At this point, the diviner broke off the divination, explaining he had seen Bruno'skinsmen carrying weapons. He feared they would kill whoever was named as the mur-derer and was worried about what the government would do about that killing. None-theless, while the trial was aborted, its most likely result is evident: Panga would havebeen named the murder of the sorcerer, a judgment all the villagers would readily haveaccepted. Counts, The Kaliai Lupunga: Disputing in the Public Forum in CONTENTION AND

DISPUTE, 113, 135 n.141 (A.L. Epstein ed.).